Citation Nr: 0610977
Decision Date: 04/17/06 Archive Date: 04/26/06
DOCKET NO. 97-07 067 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for a low back
disability.
2. Entitlement to service connection for residuals of a
chest contusion.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from March 1979 to March
1987.
This matter originally came before the Board of Veterans'
Appeals (the Board) on appeal from an October 1996 rating
decision of the Department of Veterans Affairs (VA) Los
Angeles, California, Regional Office (RO). The Board
remanded the issue of service connection for a low back
disability to the RO for further development in May 1998.
In May 1998, the Board also issued a decision denying the
veteran's attempt to reopen a previously denied claim of
service connection for residuals of a chest contusion, and he
subsequently appealed to the United States Court of Appeals
of Veterans Claims (formerly known as the U.S. Court of
Veterans Appeals) (hereinafter "Court"). The Court granted a
Joint Motion for Remand in December 1998, and remanded the
case to the Board for reconsideration based on the recent
decision of the United States Federal Circuit Court in Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Subsequently, in an October 2000 decision, the Board reopened
the claim for service connection for residuals of a chest
contusion and denied it on the merits. The Board's decision
also denied the veteran's claim for service connection for a
back disability.
The veteran again appealed to the Court. The Secretary
submitted an unopposed Motion for Remand in March 2001, and
in April 2001, the Court granted the motion and vacated that
part of the Board's October 2000 decision that denied the
veteran's claims for service connection for residuals of a
chest contusion and a low back disability.
In a May 2002 decision, the Board again denied the veteran's
claims for service connection. The veteran again appealed to
the Court. In March 2003, the Court vacated the Board's May
2002 decision and remanded the case for reconsideration
consistent with the Joint Motion for Remand.
In September 2004, the Board remanded the case for additional
development. Subsequently, a January 2006 rating action
continued the prior denials.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran is service connected for myofascial pain syndrome
with headaches and left C8-T1 radiculopathy, and also for
dorsal scoliosis. He contends that he has chronic
disabiliti3es of the low back and residuals of chest
contusion that should also be service connected.
The veteran was injured in a motor vehicle accident in April
1982. Report of examination from a private physician in
April 1982 indicated complaints of problems with the
veteran's neck, rib cage and upper- and mid-back. Diagnoses
included acute symptomatic, posttraumatic musculotendinous-
ligamentous injury of the cervical spine; acute symptomatic
residuals of a contusion of the sternum and the left rib cage
with current pectoralis myofascitis and continuing sternal
and left pectoralis pain; and acute symptomatic,
posttraumatic musculotendinous injury of the thoracic and
lumbar spine, superimposed on preexisting asymptotic L5
spondylosis.
Service medical records showed chronic somatic dysfunction
secondary to the motor vehicle accident trauma. In February
1983, X-rays revealed mild compound scoliotic thoracic
curves. In May 1983, physical examination revealed that the
sixth rib on the left was elevated. The assessment was
chronic somatic dysfunction of the thoracic cage due to
elevated sixth rib.
For the remainder of 1983 and into 1984, the veteran was seen
at sick call for several musculoskeletal complaints which he
associated with the motor vehicle accident. In June 1984, he
was referred to cardiology for evaluation of chest pain. He
complained of sharp chest pain since the April 1982 accident.
The impression was myofascial syndrome with chest pain
secondary to motor vehicle accident.
In August 1984, a report by a Medical Evaluation Board (MEB)
of service physicians was prepared. The MEB report noted
that extensive diagnostic workup and extensive consultant
workup failed to reveal any significant discogenic disease in
the lumbar region. It was felt that the veteran "suffers
from a chronic myofascial syndrome".
On a second service MEB report, dated November 1985, the
diagnoses were: (1) post concussion syndrome with headaches;
(2) chronic cervical strain; (3) chronic thoracic strain; (4)
chronic lumbosacral strain; (5) myofascial syndrome of the
cervical spine, thoracic spine and lumbosacral spine; and (6)
occipital neuralgia.
Report of VA neurological examination conducted in July 1987
indicated (1) myofascial pain syndrome, by history, involving
the left anterior chest wall, left anterior and posterior
neck, left upper extremity, most severely in the distribution
of C8, by history, with secondary myofascial head pain and
tertiary common vascular headache; (2) history of left
lumbosacral discomfort and radiation into the left lower
extremity, rule out left L4 radiculopathy; (3) congenital
hyperpigmentation in the left lower extremity in the
distribution of left L3, L4; (4) left C8,T1 radiculopathy by
electromyography.
Report of VA orthopedic examination conducted in October 1987
noted chronic low back pain with no neurological findings.
On VA orthopedic examination in July 1989, X-rays of the
lower lumbar spine revealed spondylolysis. The diagnoses
were cervical strain and lumbar disk with spondylolysis at
L5-S1 with minor scoliotic curve. Based on the veteran's
history, the examiner stated that the 1982 car accident had
aggravated these conditions.
Report of VA examination conducted in September 1996, noted
complaints of "severe" chest pain, upper and lower back pain
and headaches. X-ray of the lung noted paraseptal bullous
emphysema of the left upper lobe. On physical examination,
he was noted to have marked tender left chest wall. The
diagnosis was regional pain syndrome.
A November 1998 VA treatment record noted likely
costochondritis. A private medical report from H. R. B.,
M.D., dated April 1999, indicated that the veteran was seen
for current complaint of constant pain of the left chest
wall. The veteran indicated that he had suffered an injury
in April 1982 in a motor vehicle accident. Dr. B. stated
that: His present chest pain is directly related to the
motor vehicle accident while in the military. The diagnosis
was: "Chronic intercostal strain and cartilage tear."
A November 1999 examination and evaluation by a fee-basis
board eligible neurologist found: "No neuralgic pathology
identified." The examiner further commented that "[t]here is
no evidence that the [veteran] sustained sufficient trauma in
1982 to produce chronic pain fifteen years later." She
further commented that based on examination findings in 1984
and 1985, as well as recent records, that there were no
current objective findings to corroborate the veteran's
subjective complaints of chronic pain. Specifically, the
neurologist found "no evidence of any current neuralgic
pathology related to the back complaints for which the
veteran was treated during service."
The veteran was also afforded an examination by a fee-basis
board certified orthopedist in November 1999. The examiner
commented that "[t]here is no evidence of any current back
disability. The veteran has subjective findings only without
evidence of any significant objective pathology." The
examiner further commented that "there is no evidence of any
etiological relationship between any current back disability
and/or back complaints which the veteran was treated for
during the service, as there is no evidence of any back
disability at this time."
An April 2003 private treatment record noted the veteran's
complaints of chest pain secondary to traumatic blunt force
chest contusion. The examiner noted that the veteran had
been injured in a car accident in service in 1982, and
diagnosed blunt force (traumatic) chronic costochondritis,
and lumbosacral (traumatic) disc disease with associated
intermittent left radicular symptoms...motor vehicle accident-
late effect.
As the record shows evidence of current objective findings
related to the veteran's back and chest complaints, it is
necessary for a current VA examination to determine the
nature and etiology of any such disabilities.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be afforded VA
orthopedic and neurological examinations to
determine the nature and etiology of any
current low back and chest disabilities.
All indicated tests and studies should be
conducted. The claims folder and this
REMAND should be made available to the
examiners for review in conjunction with
the examination. In particular, the
examiners should be requested to review the
findings of the August 1984 and November
1985 medical evaluation boards, as well as
the April 2003 report of Dr. Bass, and the
reports of the June 1987, July 1989, and
November 1999 VA examinations. Following
completion of the examinations and the
review of the records, the examiners should
express their opinions to the following
questions:
(1) What are the precise diagnoses of the
veteran's current back and chest
disabilities?
(2) Is there a 50 percent probability or
greater that any current back and/or chest
disability is related to the injuries
and/or back and chest complaints for which
the veteran was treated during service?
Please note whether any current diagnosis
of costochondritis or disc disease may be
related to the veteran's complaints in
active service.
Complete rationale for all opinions
expressed should be provided.
2. After the development requested above
has been completed to the extent possible,
the RO should again review the record. If
any benefit sought on appeal remains
denied, the veteran and representative
should be furnished a supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).